Schultz v. Byers

The opinion of the court was delivered by Scudder, J. The declaration is framed on the idea that the plaintiffs' land, dwelling house and building were entitled to support by the adjacent land of the defendant, and that by wrongfully digging away and removing such support the damage complained of was caused, whereby a right of action-accrued. A demurrer was filed to this declaration, but it appears to have been waived, and the cause was tried on ai plea of the general issue, and proofs. With this form of pleading, leaving the declaration unaltered, there is difficulty-in holding the case in court to determine the exact cause of' — 443 — controversy between these parties. But as the court at the circuit heard and decided the cause as if the pleadings were amended to present the issue, and the question is important, it will be considered as it was there tried and decided. It is almost unnecessaiy to say that the juxtaposition of lands gives no right of support to buildings erected thereon, unless conferred by grant, conveyance or statute. As this is a case of recent erection of the building alleged to have been injured, the question of prescription, or lapse of time sufficient to infer a grant or conveyance, does not arise, nor has such right ever been conceded in our courts. The principle of the lateral support of lands and buildings was settled in this state by the case of McGuire v. Grant, 1 Dutcher 356 (1856). As to land in its natural condition there is a right to such support from the adjoining land; as to buildings on or near the boundary line, injured by excavating on the adjoining land, there is no right of action, in the absence of improper motive, or of carelessness in the execution of the work. This is the law as established by the cases prior to that decision; it has remained the unquestioned law in this state since that time, and it has been confirmed by many cases since in other courts. Some of the most recent are very valuable for reference, notably Gilmore v. Driscoll, 122 Mass. 199; Angus v. Dalton, 6 Ch. App. Cas. 740, L. R. (3 Q. B. Div.) 85, where a most thorough examination of the subject will be found. Although this law seems to give the owner of a building put upon his own land in a manner most advantageous and sometimes necessary to make it available for his use, especially in a closely built city, but little protection against the choice- or caprice of another who may own the adjoining lands, yet it will be observed he is not entirely without protection, Neither can say, “ It is lawful for me to do what I will with my own,” as has been sometimes loosely stated in discussing this subject, and that it is a man’s folly to build near the dividing line between his land and that of his neighbor, for it is more frequently his necessity that compels him to do so. — 444 — 'The rights of the parties are equal, and are subject to modification by the conflicting right of each other. Our statute relating to party walls {Rev., p. 809) shows that in some cases it has been thought necessary to fix authoritatively the mutual concessions and limitations in the rights of .adjoining land owners. This statute only applies where the -excavation is more than eight feet in depth, while in this, case ■the digging is but seven feet deep, but it is a recognition of the reciprocal right and duty which sometimes grow out •of the mere vicinage of property. The maxim sie utere tuo ut alienum non laedas is often invoked in such cases, and is of very wide application. In this case the limitation of this principle is, that if the owner of adjoining land would dig down beside the foundation of his neighbor’s house, he must ■exercise his right to do so not carelessly, but cautiously. There was no proof, or offer to prove, at the trial, that the • defendant was negligent in digging his cellar, whereby the •plaintiffs’ house was caused to settle and the walls to crack, beyond the mere fact that this was the result. This result .alone was not sufficient, for it may have been caused by ■defects- in the plaintiffs’ house. The special ground of complaint is, that it was done without the knowledge of the plaintiffs, and without notice to them, by which they might have been enabled to protect their property. It is argued that the defendant thereby took upon himself the whole risk of injury to the building. The question whether such omission to give notice, under the circumstances stated, is evidence of -carelessness in the execution of the work is an important one, .and it cannot be said to be definitely settled. The case most frequently cited in this country in favor of requiring such notice is Lasala v. Holbrook, 4 Paige 169, 173 (1833). In this -case Chancellor "Walworth, while affirming the right of the owner of adjacent land to excavate for improvement on his •own land, using ordinary care and skill, without incurring -damages for injury to a building supported thereby, says: From the recent English decisions it appears that the party who is about to endanger the building of his neighbor by a — 445 — reasonable improvement on his own land, is bound to give the owner of the adjacent lot proper notice of the intended improvement, and to use ordinary skill in conducting the same.” He cites Peyton v. Mayor of London, 9 Barn. & C. 725; S. C., 4 Man. & R. 625; Walters v. Pfeil, 1 Moo. & M. 362; Massey v. Goyner, 4 Car. & P. 161. In Peyton v. Mayor of London it was held that the plaintiff could not recover, because the defendant had not given notice-of his intention to pull down his supporting house, that not being alleged in the declaration as a cause of the injury. Lord Tenterden says, because of the failure to allege want of notice, the action cannot be maintained upon the want of such notice,, supposing that, as a matter of law, the defendants were bound to give notice beforehand, upon which point of law we are not in this case called to give any opinion. In Massey v. Goyner, where notice was given to the occupier of adjoining premises of an intention to pull down and remove the foundation of a building, it was held he was only bound to use reasonable and ordinary care in the work, and not to secure the adjoining premises from injury. In Chadwick v. Trower, 6 Bing. N. C. 1; S. C., 8 Scott 1 (1839), it was decided, in the Exchequer Chamber, that the mere circumstance of juxtaposition does not render it necessary for a person who pulls down a wall to give notice of his intention to the owner of an adjoining wall. This case was first considered in 3 Bing. N. C. 334, and cited in 2 Scott N. R. 74 and 5 Id. 119. In the argument, when it was urged that if it be a duty imposed on a party not to do work so incautiously as to injure his neighbor’s rights, and it is clearly a want of proper caution to omit giving such notice as may enable the-neighbor to take steps for his own security, Parke, B., replied : “ The duty of giving notice in such cases seems to be one of those duties of imperfect obligation which are not enforced by the law.” But if It be a duty affecting property rights, and the breach causes damage, it would seem that the law must afford a remedy. — 446 — In Brown v. Windsor, 1 Cromp. & J. 20, Garrow, B., said: u There may be cases where a man altering his own premises cannot support his neighbor’s, and the support, if necessary, must be supplied elsewhere. In such case he must give notice, and then, if an injury occur, it would not be occasioned by the party pulling down, but by the other party neglecting to take due precaution.” There are no later cases, that I have found, in the English courts, which change the rule given in Chadwick v. Trower,. and that is therefore supposed to be the present law in England relating to this subject, though the cases above cited refer to support by adjoining buildings. There are very few cases in our country which bear directly on this point. Shafer v. Wilson, 44 Md. 268, is most frequently referred to, after Lasala v. Holbrook, above cited. It is there said, that notice to one’s neighbor of an intention to make a contemplated improvement of property would seem to be a reasonable precaution in a populous city, where buildings are necessarily required to be contiguous to each other, and improvements made by one proprietor, however skillfully conducted, may be attended with disastrous results to his neighbors, who ought to have the opportunity to protect themselves and property. To the like effect is Beard v. Murphy, 37 Vt. 101. Chancellor Kent, 3 Com. 437, has quoted the case of Lasala v. Holbrook, and this has been referred to in Shafer v. Wilson, and elsewhere. Washb. Easem. 434, 435; Shearm. & R. Negl. 497; 1 Thomp. Negl. 276, and other test books, cite these cases, and from such quotations it is impossible to determine how far the requirement of notice has passed into the general law of the courts in this country. Hone of these cases are of binding authority in this court, and in a case of doubt, like this, w'e should seek for that result which is most reasonable and just. Where the danger of loss in doing a legal act is not equally balanced, we should lean to that side which most needs protection. Here a mere notice, which can cause but little trouble to one who is hon — 447 — estly exercising his right of excavating his land next to his neighbor’s house, may enable the receiver of notice to shore •or prop his walls to prevent its falling, or it may lead to some arrangement by which neither will be injured. It is more than a mere neighborly courtesy to give such notice, because it involves the right of one man to assert his right, regardless of the injury he may cause to his neighbor without such warning. The manner of giving notice may be only such as is reasonable under the circumstances, either to the owner of the property, or, if there be difficulty in finding or serving it on him, then it may be given to the tenant or occupant who is interested in protecting the property. Where it can be shown that such owner had knowledge of the improvement that was about to be made, it would not be necessary to prove a formal notice given to him. In this view of the base, there was error in rejecting the ■evidence which was offered to show that the defendant gave no notice to the plaintiffs of his intention to excavate the land adjoining the house of the plaintiffs, and the judgment will be reversed.